UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JUDITH IMMELL,

Plaintiff,

Case No.: 2:12-CV-0563

-v- JUDGE SMITH

Magistrate Judge Abel

STATE OF OHIO, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Defendant.

OPINION AND ORDER

Plaintiff Judith Immell brings this employment discrimination action against Defendant

the State of Ohio, Chillicothe Correctional Institution, claiming that Defendant subjected her to a

hostile work environment and reassigned her to a different job in retaliation for complaints of

discrimination and because of (1) her gender and race in violation of Title VII, 42 U.S.C. §

2000e; (2) her age in violation of the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §621 et seq., and (3) her disability in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. Defendant has moved for summary judgment. (Doc. 11). 

Plaintiff has responded and this matter is ripe for review. For the reasons that follow, the Court

GRANTS Defendant’s Motion for Summary Judgment.

I. FACTS

Judith Immell is a 48 year old Caucasian female, who has been employed with the State

of Ohio since August 1987. Most recently, her position was as Mental Health Administrator 4 at

the Chillicothe Correctional Institution (“CCI”). (Compl. ¶ 5). Plaintiff was promoted to that

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position sometime during 2002 or 2003. In this position, Plaintiff supervised the entire CCI

Mental Health Department including the sex offender residential treatment program. (Immell

Dep. at 11-12). Plaintiff’s educational background includes an associate’s degree in human

services, a bachelor’s degree in psychology, and a master’s degree in sociology. (Immell Dep. at

8). 

Defendant CCI is owned and operated by the Ohio Department of Rehabilitation and

Corrections (“ODRC”) and is located in Chillicothe, Ohio. CCI is a Level 1 and 2 medium

security facility that holds approximately 2650 offenders. At all times relevant to this case, CCI

was unique in that it housed a residential treatment unit for mentally ill inmates and it had a sex

offender program where sex offenders receive different levels of intensive programming

designed to prevent recidivism. (Knab Aff. ¶ 3; Immell Dep. at 11-12).

At all times relevant to this action, Robin Knab (Caucasian female) was the Warden at

CCI. Warden Knab was responsible for the daily operation of the institution, including

personnel actions. She has been an employee with the Department of Rehabilitation and

Corrections for 27 years. Knab is also the Southwest Regional Director in the Office of Prisons

where she oversees the operations of all prisons located in the southwest region of Ohio. (Knab

Aff. ¶¶ 1-2). 

Norman Robinson (African-American male) was the Deputy Warden of Special Services

at CCI during the relevant time period and he is now the Warden at CCI. As Deputy Warden,

Robinson supervised all of the institution’s non-security related functions including the Mental

Health Department. Robinson was Plaintiff’s direct supervisor. (Immell Dep. at 13-14;

Robinson Aff. ¶¶ 1-2). 

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A. Plaintiff’s Job Duties and Reassignment

Plaintiff, as the Mental Health Administrator 4 overseeing the mental health program,

was responsible for supervising the three division supervisors and one secretary. The CCI

mental health department was comprised of three divisions: the residential treatment unit, which

provides residential treatment to inmates with serious mental health issues; the sex offender

program, which provides differing levels of intensive programming to sex offenders; and general

mental health services to inmates as needed. Each of the divisions had a supervisor, as well as a

staff of psychologists and social workers. (Knab Aff. ¶¶ 3-4). 

Sometime in late 2010, Bill Steinhoff, the Sex Offender Program Supervisor at CCI

resigned and Knab and Robinson, at the direction of the ODRC, began discussing ways to fill the

vacant position, including the option of restructuring the mental health department. In particular,

Dr. Hammond, ODRC’s Chief of Mental Health Services and Susan Hanger, ODRC’s Director

of Social Work, who were responsible for providing oversight to all of the prisons’ mental health

services statewide, discussed with Knab and Robinson the potential benefits of having a licensed

mental health professional in the position of Mental Health Administrator 4, overseeing the

mental health program. (Knab Aff. ¶¶ 4, 7-8). They all agreed that it would be more efficient

and effective to have a licensed clinician oversee the mental health program because that

individual could legally provide work direction to other licensed professionals. Without a

licensed director, CCI would be required to seek an outside clinician to direct the work of the

staff clinicians. (Knab Aff. ¶ 9). During this same time, Knab learned that individuals from the

University of Cincinnati planned to work with CCI to develop new sex offender programming. 

Knab believed that Immell’s educational background made her a top candidate to foster the

relationship with the University. (Id.). 

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On January 11, 2011, Knab and Robinson met with Plaintiff and informed her of her

reassignment. They told her that she was being reassigned based on their decision to hire a

licensed mental health professional as the Mental Health Administrator 4. (Immell Dep. at 18-

19). Plaintiff was given her new job description, which was to administer CCI’s sex offender

program as a Mental Health Administrator 4 with no loss in pay, seniority, or benefits. Also,

Plaintiff’s work hours and location did not change. Plaintiff would continue to perform

administrative and supervisory functions over the employees assigned to the sex offender

program, including one supervisor, but she was no longer responsible for overseeing the entire

mental health program. (Knab Aff. ¶ 10; Immell Dep. at 18-20). 

Plaintiff described that she was in “total shock. There had been no prior discussion with

me, no indication that I was doing a poor job.” (Immell Depo. at 20). Plaintiff further described

that this was “clearly a demotion going from supervising a department of 37 to only two people,

and the person who was going to take my place would become my supervisor.” (Immell Dep. at

23). 

Following the meeting with Plaintiff, Robinson issued a memorandum to the mental

health staff stating that “MHA Judy Immell will be undertaking the Sex Offender Program at

CCI. Judy’s scholastic experience and guidance will propel the program to new heights.” 

(Immell Dep. at 26, Ex. D). Immell was succeeded by Rebecca Casto, a Caucasian female aged

41, who holds a professional mental health license as a licensed independent social worker. 

(Knab Aff. ¶ 11). 

Plaintiff never returned to work at CCI after her reassignment on January 11, 2011. She

claims that Knab and Robinson specifically designed her reassignment to embarrass her and to

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make others believe that she was incompetent. (Immell Dep. at 14, 24-25, 30-31). During the

evening of January 11th, Plaintiff claims that she began experiencing heart attack symptoms and

she could not sleep or stop crying. Her husband took her to the emergency room and Plaintiff

was diagnosed with Post Traumatic Stress Disorder. (Immell Dep. at 38). Plaintiff began seeing

a Psychiatrist and a Psychologist in February 2011, and has been receiving psychotropic

medication and therapy for PTSD and major depression since. (Id. at 39-40). 

Plaintiff describes that her new position would require her to review files and have

personal interaction with sex offenders, forcing her to re-live the sexual abuse she suffered as a

child. She claims that Warden Knab was well aware of Plaintiff’s childhood history of abuse. 

(Immell Aff. ¶¶ 22-24). She further asserts that Knab and Robinson should have been aware that

Plaintiff being forced to take disability leave and retirement was an expected outcome of her

change in job duties. (Id. at 11-12). 

Shortly thereafter, Plaintiff received a disability retirement through the Ohio Public

Employees Retirement System. She claims that she is not fit to return to work and does not think

she will ever be able to return to work. As of the briefing on this motion, Plaintiff continues to

receive disability retirement. (Immell Dep. at 40-42). 

B. Plaintiff’s Claims of Sexual Harassment

In addition to the trauma Plaintiff suffered as a result of her reassignment, she also

alleges that she was sexually harassed by Robinson, her direct supervisor. Plaintiff describes

that Robinson sexually harassed her between five and seven times during a period of a couple of

months between the fall of 2010 and January 11, 2011. (Immell Dep. at 69, 74). 

The first incident occurred in the fall of 2010 when Robinson told Plaintiff to “work the

way he wanted me to work, and I better be a team player, and to smile, that I was prettier when I

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smiled.” (Immell Dep. at 69). Immell describes that she was intimidated because Robinson said

it loudly and forcefully. (Id. at 69-70). Plaintiff also describes that Robinson offered to have

lunch with her and she declined his requests. She mostly ate lunch in her office and he ate in his

office. (Id. at 74-76). Additionally, she claims Robinson told her that she “needed to start

socializing with him” and she declined. She states that they never socialized together. (Id. at

77-78). Plaintiff describes that Robinson would “go outside of the institution and he took female

employees with him.” (Id. at 74). However, she does not know why they left together and she

was never invited to leave with him. (Id. Dep. at 74-76). 

Another incident occurred when Plaintiff was meeting with two other mental health staff

members, Dr. Castle and Diana Buhring. Robinson entered the room and slammed a leather

bound notebook on the table “kind of like a coach coming into the locker room.” (Immell Dep.

at 78-79). Plaintiff describes that she was intimidated. (Id. at 79). In another meeting, Plaintiff

asserts that she disputed some of Robinson’s directions and he responded with “if you don’t like

it, I’ll just move your office in a mop closet.” (Id. at 89). However, her office was never moved

into a mop closet. (Id. at 90). 

Plaintiff further describes that during meetings with other employees and alone,

Robinson would generally speak to her with “disdain in his voice” and would scream at her. 

(Immell Dep. at 86-87, 91-92). Immell does recall specific comments, but describes that “he just

didn’t like the way I did my job for some reason, I suppose.” (Id. at 91). 

Another incident Plaintiff described was when she was preparing for a tour from outside

dignitaries and she disagreed with Robinson’s choice of tour guides. Plaintiff states that she

used the word “wow” in her disagreement with Robinson and he instructed her never to use the

word “wow” in the institution. (Immell Dep. at 92-93). Plaintiff also states that she was

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offended because Robinson selected a male to accompany her in the tour instead of another

woman. (Id. at 94).

Plaintiff also asserts that she thought it was inappropriate for Robinson to hang posters of

male boxers in boxing trunks in “aggressive stances” in his office. She described that she would

“feel aggression” when she walked into Robinson’s office. Further, she stated that “they

wouldn’t allow somebody to hang up a picture of a woman in a bathing suit.” (Immell Dep. at

82-83). 

Finally, on November 29, 2010, the CCI Locksmith Paul Hawk issued an email

identifying employees who consistently failed to follow proper procedure in conducting “key

audits.” Plaintiff was included in this email and she took offense. She complained about Mr.

Hawk, and Warden Knab made him apologize to Plaintiff. Plaintiff believes that “anybody else”

would have been “put through a fact finding and disciplinary finding.” (Immell Dep. at 100-104;

Ex. K). 

Despite now asserting these claims and describing these incidents during the course of

this litigation, Plaintiff never complained about these incidents at the time and never complained

of any discrimination during her employment. (Immell Dep. at 81, 114-115). 

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II. STANDARD OF REVIEW

The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of

Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate,

however, if the nonmoving party fails to make a showing sufficient to establish the existence of

an element essential to that party’s case and on which that party will bear the burden of proof at

trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.

2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

When reviewing a summary judgment motion, the Court must view all the facts, evidence

and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving

party. Matsushita, 475 U.S. at 587. The Court will ultimately determine whether “the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53. Moreover,

the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine

issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6thCir. 1978). The Court’s

duty is to determine only whether sufficient evidence has been presented to make the issue of

fact a proper question for the jury; it does not weigh the evidence, judge the credibility of

witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249; Weaver v.

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Shadoan, 340 F.3d 398, 405 (6thCir. 2003). 

In responding to a summary judgment motion, the nonmoving party “cannot rely on the

hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present

affirmative evidence in order to defeat a properly supported motion for summary judgment.’”

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6thCir. 1989) (quoting Liberty Lobby, 477

U.S. at 257). The existence of a mere scintilla of evidence in support of the opposing party’s

position is insufficient; there must be evidence on which the jury could reasonably find for the

opposing party. Liberty Lobby, 477 U.S. at 252. The nonmoving party must present “significant

probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the

material facts.” Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6thCir. 1993). The

Court may, however, enter summary judgment if it concludes that a fair-minded jury could not

return a verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby,

477 U.S. at 251-52; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6thCir. 1994).

Moreover, “[t]he trial court no longer has a duty to search the entire record to establish

that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the

nonmoving party has an affirmative duty to direct the court’s attention to those specific portions

of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris,

260 F.3d 654, 665 (6thCir. 2001).

III. DISCUSSION

Plaintiff alleges that Defendant the State of Ohio/CCI subjected her to a hostile work

environment and reassigned her to a different job in retaliation for complaints of discrimination

and because of her gender and/or race in violation of Title VII, 42 U.S.C. § 2000e, her age (47)

in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.,

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and her alleged disability in violation of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101, et seq. Defendant has moved for summary judgment, asserting soverign

immunity as a bar to Plaintiff’s ADEA and ADA claims, as well as asserting that Plaintiff has

failed to set forth a prima facie case of discrimination and/or retaliation. The Court will address

these arguments in turn. 

A. Sovereign Immunity

Defendant asserts that pursuant to the Eleventh Amendment to the United States

Constitution, states and their agencies are immune from suit in federal court under the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; see also Kimel v. Florida Bd. of

Regents, 528 U.S. 62, 91 (2000); Latham v. Office of the Attorney General, 395 F.3d 261, 270

(6thCir. 2005). Under the Eleventh Amendment, a State may not be sued in federal court unless

it has consented to such a suit or its immunity has been properly abrogated by Congress. Here,

there has been no consent by the state, and the Supreme Court in Kimel expressly held that

Congress, when enacting the ADEA, did not abrogate States’ sovereign immunity. 

Plaintiff argues that she has a claim for injunctive relief which is not barred by the

Eleventh Amendment under Ex Parte Young. Under the Ex Parte Young doctrine, the Eleventh

Amendment bars federal jurisdiction over lawsuits against state officials when the relief sought

is retrospective or compensatory in nature. However, Plaintiff has only brought suit against the

state, not state officials. Accordingly, Plaintiff’s ADEA claim is barred by sovereign immunity. 

Defendant argues, and the Court agrees that even if this reasoning applied, Plaintiff is not

seeking reinstatement because she cannot return to work. 

The same principles also apply to Plaintiff’s ADA claims. See Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 356, 374 (2001); Robinson v. University of Akron

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School of Law, 307 F.3d 409, 411 (6th Cir. 2002). Plaintiff has only sued the State of Ohio,

therefore, her ADA claims are barred as well.1

B. Plaintiff’s Discrimination and Retaliation Claims

Plaintiff alleges that she was subjected to discrimination based upon her race and sex. 

She asserts that she has sufficiently set forth a prima facie case of discrimination. Because

Plaintiff does not allege any direct evidence of discrimination, her claims must be evaluated

under the three-part McDonnell Douglas burden-shifting framework. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 803 (1973); see also, Schoonmaker v. Spartan Graphics Leasing,

LLC, 595 F.3d 261, 264 n.1 (6th Cir. 2010) (holding that age discrimination claims based on

circumstantial evidence are analyzed under McDonnell Douglas); Talley v. Family Dollar Stores

of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008) (applying the McDonnell Douglas

burden-shifting framework to disability discrimination claim).

Under the McDonnell Douglas test, if the plaintiff establishes a prima facie case, then the

burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for

the adverse action against the plaintiff. See id.; Texas Dept. of Comm. Affairs v. Burdine, 450

U.S. 248, 252-53 (1981). If the defendant comes forward with a legitimate, non-discriminatory

reason for its actions, then the burden returns to the plaintiff to prove that the defendant’s

proffered reason is a mere pretext for discrimination. See id.; Burdine, 450 U.S. at 253. To

show pretext, a plaintiff must show that the employer’s proffered reasons: (1) lack a basis in

fact; (2) did not actually motivate the employer’s adverse action; or (3) are insufficient to

1

 The Court notes that Plaintiff’s alleged disability did not develop until after her

reassignment, therefore, she could not establish that Defendant took the alleged adverse action

because of her disability. 

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motivate the employer’s adverse action. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d

1078, 1084 (6th Cir. 1994).

“The nature of the burden that shifts to the defendant should be understood in light of the

plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” Id. at 253. This burden-shifting framework is intended to be flexible in differing

factual circumstances. See, e.g., Christian v. Wal–Mart Stores, Inc., 252 F.3d 862, 869–70 (6th 

Cir. 2001) (citing Burdine, 450 U.S. at 254 n.6).

To establish a prima facie case of gender and race discrimination, Plaintiff must show

that: 1) she is a member of a protected class; 2) she suffered an adverse employment action; 3)

she was qualified for the position; and 4) she was replaced by a person outside the protected

class. McDonnell Douglas, 411 U.S. at 802; Smith v. City of Salem, Ohio, 378 F.3d 566, 570

(6th Cir. 2004).

Additionally, in cases of “reverse discrimination” where, as here, the plaintiff is not a

member of a protected racial class, the Sixth Circuit has modified the first and fourth prongs of

the traditional prima facie case. See Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004). 

With respect to the first prong, a plaintiff must demonstrate “background circumstances to

support the suspicion that the defendant is that unusual employer who discriminates against the

majority.” Leadbetter, 385 F.3d at 690, citing Sutherland v. Michigan Dep’t of the Treasury,

344 F.3d 603, 614-15 (6th Cir. 2003). A plaintiff establishes “such background circumstances

by presenting evidence of [defendant’s] unlawful consideration of race as a factor in hiring in the

past justifies a suspicion that incidents of capricious discrimination against whites because of

their race may be likely.” Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 256 (6th Cir.

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2002). With respect to the fourth prong, “plaintiff must show that the defendant treated

differently employees who were similarly situated but were not members of the protected class.” 

Id. at 255. 

The parties do not dispute that Plaintiff is a female and therefore a member of a protected

class. Nor is there any dispute that she was qualified for her position. However, the parties

dispute whether Plaintiff was subjected to an adverse employment action and whether she was

replaced by a person outside the protected class. 

1. Adverse Employment Action

Defendant argues that Plaintiff’s reassignment, with no loss in pay or benefits and no

change in working hours or job location, was not a materially adverse employment action. 

Plaintiff asserts that “the fact that Ms. Immell’s depression resurfaced and she was diagnosed

with post traumatic stress syndrome and was forced to take disability retirement are clearly

adverse employment actions suffered at the hands of the defendant.” (Plaintiff’s Response at

13). She cites primarily the effects of her reassignment and not the reassignment itself as being

the adverse employment action.

The United States Court of Appeals for the Sixth Circuit has held: 

An adverse employment action has been defined as ‘a materially adverse change

in the terms and conditions of [a plaintiff’s] employment.’ White v. Burlington N.

& Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc) (citation

omitted). A ‘bruised ego’ or a ‘mere inconvenience or an alteration of job

responsibilities’ is not sufficient to constitute an adverse employment action. Id.

at 797. Adverse employment actions are typically marked by a ‘significant

change in employment status,’ including ‘hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.’ Id. at 798 (quoting Burlington Indus. v. Ellerth,

524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010). Moreover, “[t]he Sixth Circuit

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has consistently held that de minimus employment actions are not materially adverse and, thus,

not actionable.” Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). Thus,

reassignment or lateral transfers without accompanying changes in salary, benefits, title, work

hours or material responsibilities usually do not constitute adverse employment actions. Kocsis

v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996); Momah v. Dominguez, 239 F.

App’x 114, 123 (6th Cir. 2007); see also Arnold v. City of Columbus, 2011 U.S. Dist. LEXIS

35807 (S.D. Ohio 2011) (Watson, J.) (finding that plaintiff’s transfer was not an adverse action

when no evidence was shown that the position was less prestigious, involved diminished

responsibilities, or reduced pay or benefits).

Plaintiff has failed to offer any evidence that her new position with the same title, pay

and benefits is in any way less desirable than her former position. Many of Plaintiff’s arguments

are somewhat difficult to interpret, but her primary argument is that because she suffered post

traumatic stress as a result of the reassignment, it must be an adverse employment action. She

also fails to understand the burden in responding to Defendant’s motion for summary judgment,

arguing that Defendant has failed to meet its burden. Plaintiff states that “defendant produced no

documentation whatsoever to support the alleged need to restructure the Mental Health

Department or change plaintiff’s job duties.” (Pl.’s Memo. in Opp. at 14). It is Plaintiff,

however, who fails to site to any relevant evidence other than one citation to her deposition. She

relies primarily on her thirteen page affidavit which is self-serving and contains many

inadmissible conclusory allegations. The Court is not obligated “to comb the record to find

evidence or testimony establishing a party’s case.” Nersick v. CSX Transp., Inc., 692 F. Supp.

2d 866, 882 (S.D. Ohio 2010) (Weber, J.). Rather, Plaintiff, as the non-moving party, has an

affirmative duty to direct the Court’s attention to those specific portions of the record upon

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which she seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654,

665 (6th Cir. 2001). Thus, Plaintiff has failed to establish that her reassignment was an adverse

employment action. 

Additionally, although Plaintiff does not specifically argue this, it could be inferred that

she is asserting a constructive discharge as an adverse employment action. The Sixth Circuit has

held “when a transfer would have been objectively intolerable to a reasonable person, thereby

amounting to a constructive discharge” and employee’s rejection of the lateral transfer is an

adverse employment action. Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001). 

Plaintiff suggests that Warden Knab knew that she was a victim of sexual abuse as a child and

this new position would cause her to suffer from post-traumatic stress disorder. However,

Plaintiff fails to adequately explain how the reassignment would be any different than her

previous role which also dealt with the sex offender treatment program. Plaintiff has failed to

produce any evidence that her reassignment involve the type of reduced responsibilities or

menial or degrading work such that it amounted to a constructive discharge. See Joiner v. Ohio

Dep’t of Trasp., 949 F.Supp. 562, 569 (S.D. Ohio 1996). Accordingly, Plaintiff has failed to

establish that she has suffered any adverse employment action. 

2. Replaced by a person outside the protected class

Even if Plaintiff was able to demonstrate that she suffered an adverse employment action,

she has failed to establish that she was replaced by an individual outside the protected class, a

male or an African American. In fact, Plaintiff was replaced by Rebecca Casto, a 41 year old

Caucasian female who holds a professional mental health license as a licensed independent

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social worker. (Knab Aff. ¶ 11). Again, it is Plaintiff’s burden to produce evidence to establish

that she was treated differently than a similarly-situated person outside her protected class. 

Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). To be deemed similarly situated,

the comparable employee “must have dealt with the same supervisor, have been subjected to the

same standards and have engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer’s treatment of them for it.” 

Id. Plaintiff’s only argument in support of this claim is provided in her interrogatory answer: 

“James Lapointe, Mary Migra, Amy Noll, Nancy Frye-Jones, Jeffrey McDonald, Dirk Prise,

Christopher Nicastro, Lanny Sacco and Charlotte Jenkins. These were Mental Health

Administrators at other ODRC institutions and they were not forced into another job duty

description. Other information unknown at this time.” (Immell Dep. Ex. J at 10). However,

Defendant correctly notes that none of these individuals worked under the same supervisor,

Warden Knab, nor would Knab be responsible for overseeing them. Further, for purposes of

reverse discrimination, Plaintiff has failed to establish that Warden Knab or ODRC ever used

race as a factor in hiring, firing, or in any policy decision. Accordingly, Plaintiff has failed to

offer sufficient evidence to establish a prima facie case of race and sex discrimination. 

Finally, even if Plaintiff were able to establish a prima facie case of race and sex

discrimination, Defendant has set forth a “legitimate, nondiscriminatory reason” for Plaintiff’s

reassignment. Burdine, 450 U.S. at 254-56. And Plaintiff cannot prove that Defendant’s

articulated reason was pretext, nor that the real reason for her reassignment was discrimination. 

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993). 

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Defendant claims that the reason for Plaintiff’s reassignment was to place a licensed

clinician in Plaintiff’s position and that Plaintiff’s educational background fit with the new

direction of the sex offender program. And, Plaintiff has failed to set forth sufficient evidence

that this reason is pretextual. Accordingly, Plaintiff’s claims of race and sex discrimination fail

and Defendant is entitled to summary judgment on these claims. 

C. Plaintiff’s Retaliation Claim

Retaliation claims based on circumstantial evidence are evaluated under a variant of the

McDonnell Douglas-Burdine burden-shifting test. Hamilton v. GE, 556 F.3d 428, 435 (6th Cir.

2009). To establish a prima facie case of retaliation, a plaintiff must show that “(1) she engaged

in activity protected by Title VII; (2) this exercise of protected rights was known to defendant;

(3) defendant subjected plaintiff to a materially adverse employment action; and (4) a causal

connection exists between the protected activity and the materially adverse employment action.” 

Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). 

Plaintiff’s retaliation claim fails for same reasons as set forth above. She cannot establish

that she was subjected to a materially adverse employment action. Further, she has failed to

provide sufficient evidence that she engaged in any protected activity or that the exercise of her

protected rights was known to Defendant. Plaintiff merely alleged that she was “obviously

retaliated against for her refusal to accept the sexual advances and demands by Mr. Robinson.” 

(Pl.’s Memo. in Opp. at 9). Plaintiff admits that she did not file any formal complaints of

discrimination. She does claim that “she complained to defendant of the discriminatory and/or

retaliatory acts and conduct to which she was subjected on numerous occasions but no action

was taken to correct same.” (Id. at 10). However, this is not sufficient to establish a prima facie

case of retaliation. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s

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retaliation claim. 

D. Plaintiff’s Hostile Work Environment Claim

In addition to general claims of race and sex discrimination and harassment, Plaintiff also

alleges that she was subjected to a hostile work environment. To establish a claim for

discrimination by being subjected to a hostile work environment, Plaintiff must show:

(1) she was a member of a protected group, (2) she was subjected to unwelcome

harassment, (3) the harassment was based upon the employee’s protected status,

such as race or gender, (4) the harassment affected a term, condition, or privilege

of employment, and (5) the defendant knew or should have known about the

harassing conduct but failed to take any corrective or preventive actions. 

Williams v. Gen. Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999) (discussing

the requirements for proving a hostile work environment claim based upon

gender); Moore v. KUKA Welding Sys. & Robot. Corp., 171 F.3d 1073, 1078-79

(6th Cir. 1999) (setting forth the elements of a prima facie case for a claim of a

hostile work environment based upon race).

Howard v. Bd. of Educ., 70 F. App’x 272, 281 (6th Cir. 2003) (citing Farmer v. Cleveland Pub.

Power, 295 F.3d 593, 604-05 (6th Cir. 2002)). The Sixth Circuit has further explained that a

Title VII plaintiff must show that

the workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment . . . . Conduct that is not

severe or pervasive enough to create an objectively hostile or abusive work

environment—an environment that a reasonable person would find hostile or

abusive—is beyond Title VII’s purview. Likewise, if the victim does not

subjectively perceive the environment to be abusive, the conduct has not actually

altered the conditions of the victim’s employment, and there is no Title VII

violation.

Virgilio v. Potter, 59 F. App’x 678, 681 (6th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21-23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)) (internal quotes and citations omitted);

see also Howard, 70 F. App’x at 282. Thus, there is both a subjective and an objective prong to

this standard. In other words, “the conduct must be severe or pervasive enough to create an

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environment that a reasonable person would find hostile or abusive, and the victim must

subjectively regard that environment as abusive.” Black v. Zaring Homes, 104 F.3d 822, 826

(6th Cir. 1997) (citing Harris, 510 U.S. at 21-22). The question before the Court is whether a

reasonable person would have found Plaintiff’s work environment to be hostile or abusive. In

making this determination, there are several factors the Court must consider, including “[t]he

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris, 510 U.S. at 23. 

Defendant argues that Plaintiff’s allegations of the alleged discriminatory conduct are not

objectively severe or pervasive to establish a hostile work environment claim. The alleged

conduct was very sporadic, occurring between five and seven times over a 4 to 5 month period. 

Plaintiff claims her supervisor told her she was prettier when she smiled, invited her to lunch,

and made vague references to socializing outside of the institution. Additionally, Plaintiff

describes that Robinson “screamed” and had “disdain” in his voice, that he had boxing posters in

his office, instructed her not to use the word “wow” and assigned a male instead of a female to

work with her in conducting a tour of the institution. Finally, Robinson threatened to move

Plaintiff’s office to a mop closet.

The aforementioned incidents are not severe or pervasive enough to create a hostile work

environment. The acts are irregular and sporadic, rather than continuous and frequent, therefore

making it difficult to establish a hostile work environment claim. “Simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1988). Further, Plaintiff has failed to establish that the allegations are linked to her

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race or gender. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s hostile

work environment claim. 

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment (Doc. 11). Final judgment shall be entered in favor of Defendant.

The Clerk shall remove Document 11 from the Court’s pending motions list.

The Clerk shall remove this case from the Court’s pending cases list.

IT IS SO ORDERED.

 s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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